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Hypothetical: Tofu at the Broccoli Court

The year is 2018 and President Tofu is fortunate to have a majority in both houses of Congress. America elected President Tofu when it became weary of partisan politics and developed a taste for a President with no preconceived notions and fully capable of absorbing the flavors of whatever surrounds him at the moment; a pragmatic, businesslike President for tough and fast-changing times. American small businesses are still hurting from the lingering effects of the Great Recession, but its larger bastions of business savvy are thriving in a booming global economy bringing cheap products to the impoverished masses armed with $5 cell phones, $10 netbooks and empowered by a Khan universal education system (the other Khan, not Genghis).

Many Americans are also benefiting from this expansion in some ways. For example, after the 2016 passage of the historical and liberating Student Protection and Affordable Education Act (SPAEA), many parents decided to take advantage of the Khan system, now owned and selflessly maintained by Google, and use the Government Education Voucher (GEV, pronounced give), minus the $15 for a cell phone and netbook for each child, to pay for the mandated health insurance penalty of 2010, thus breaking even on child mandates. This trend caught on like wildfire after some knucklehead libertarian tweet went viral on every social media outlet practically overnight, as a suggested measure to counteract the Constitutional, but still unpopular individual mandate to buy health insurance.

America’s Health Insurance Plans (AHIP) did not take very kindly to this popular trend, since most folks buying health insurance from US Health were now either elderly or sick. It should be noted that the other three health insurance providers, Liberty Health which insures elected public servants, Glamour Health which insures most sports and entertainment personalities and the Health Division of Goldman Sachs which provides discrete insurance to industry captains, were not affected by this phenomena, limited to some sectors of the currently or previously wage earning class. Most workers though, were provided health insurance through self-funded multi-national employers, as part of their wages. Unlike the misguided Liberal government of Mexico, who struck down in 2012 an early attempt by Walmart to pay their Mexican employees with store vouchers, the pragmatic administration of President Tofu, welcomed the business oriented solution of paying American workers with vouchers for the company health insurance store.

Seeing how by definition President Tofu found himself in close proximity to US Health executives, some since early childhood, he absorbed the pain and suffering caused to this worthy corporate citizen and decided that something must be done to ensure that elderly and sick Americans can afford US Health premiums and Khan Academy freeloaders don’t dump their health care costs on the rest of society. There were several options for President Tofu and his administration. He could have mandated that GEV should be spent at one of the few private prep schools, but that would impose undue burden on those brilliantly elite institutions of education, who were also very close to President Tofu’s heart. He could have mandated that all Americans not otherwise covered by health insurance, must purchase insurance from US Health at the ongoing premium rates, but some lesser representatives in his Party were deeply concerned with backlash from voters in the upcoming midterm elections, and President Tofu as close as he was with his colleagues, immediately absorbed their pain as well. Luckily there was another way out of this impasse.

In the summer of 2018, the landmark Life Protection and Perpetual Health Act (LPPHA) was passed in both houses with crushing bi-partisan support, and signed by the ever smiling President Tofu into law. Americans were very happy with this legislation, since all media outlets were running headlines informing the people that Congress in its wisdom is now guaranteeing health and long life for every American by 2020. For the skeptical 2012 audience, no, President Tofu was not miraculously transformed into a futuristic Indiana Jones marching out of the crumbling ancient temple with the magic challis in his raised hands, but science, particularly statistical analytics, has advanced to new heights in 2018, partially fueled by Khan Academy graduates.

A RAND corporation study conducted in December 2017, at the behest of a global retail industry giant, clearly showed that Americans employed by multi-national corporations are healthier and projected to have a much longer quality adjusted life expectancy than their peers who were not paid with company store vouchers. After careful adjustments of all measures designed to infer worker health status from corporate economic indicators, RAND concluded that multi-national workers and their dependents have a whopping 92 quality adjusted life years expectancy, thus leaving all OECD Socialized medicine countries in the dust. Other than using innovative study measures, clearly the multi-national corporations have identified the secret sauce to long life and perpetual health. In a follow-up study commissioned by AHIP, RAND identified the preventive health measures taken by self-funded employers as the indisputable cause for the longevity and excellent health of their charges.

Thus the LPPHA contained several provisions to spread the health amongst the rest of the Nation, which would dramatically reduce US Health costs and significantly contain taxpayer expenses for those who chose the 2012 penalty over buying health insurance. At the heart of the LPPHA (or PHA, pronounced phe or F), was a mandate for all citizens to purchase body weight, physical activity and happiness monitors, sold and administered by the corporation insuring their health. Since, most citizens insured by multi-nationals were already purchasing those monitors at the company store, as required by their employer, and since workers’ poor health clearly affects Commerce, and since all Commerce now is at least interstate Commerce, this seemed to be a very logical provision and its benefits to the millions of sedentary, overweight and demoralized Americans were self-evident. Hence the monitoring mandate gained enormous public support, according to the media. Of course, the Government would provide subsidies to those who cannot afford to pay for their own monitors, and monitors would be free to households under 200% FPL, which is really most of the unmonitored citizenry. In order to uphold the monitoring mandate a clever penalty will be imposed, modeled after the large employer health insurance rules, where people with a larger than the approved Body Mass Index (BMI), and/or a smaller than indicated daily activity level, and/or larger than normal depression quotient (as defined by the U.S. Preventive Services Task Force), would have to pay a penalty proportional to their income levels. Exceptions and voluntary drug treatment options are available for all categories.

For a fleeting moment after the beautiful ceremony of the LPPHA signing, by an obviously trim, fit and happy President Tofu, there were some thoughts in some old Liberal quarters that perhaps the LPPHA is unconstitutional and should be challenged in Court, but apprehensions died down quickly after experts read the 4562 pages of the statute and found that the Federal Government is not forcing us to buy broccoli. And America lived happily ever after. The End.

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The People’s Advocate at the Supreme Court Bar

H. Bartow Farr, III, Esq.

The Patient Protection and Affordable Care Act (PPACA) has finally met its challengers in the highest Court in the land and following the three days showdown, there’s nothing left but watchful waiting for the Supreme Court to hand down its final decision. All media outlets from left, right and supposedly middle are covering the events and hundreds of experts are ready to make predictions based on the inflections in one Justice’s voice. I made a point to not read any of that, and if you are an informed citizen who still insists on making his/her own mind, the very impartial SCOTUS blog is the place to go for links to the audio and transcripts of all oral arguments and all briefs submitted to the Court. By this logic you should probably not read what follows below either, but if you do, this is an unorthodox (neither left nor right) look at the proceedings from a citizen's point of view, a perspective that struck me as lacking in the proceedings themselves.

The main contenders were the Republican Governments of 26 States against a Federal Government controlled by a Democratic administration. There were also some private plaintiffs with a strong Libertarian argument, but their contribution to the subject is not clear to me, and is probably just a largely inconsequential sideshow. Generally speaking local governments were wrestling with central government in an outdated Federalist argument, where the people themselves have no standing.

The main event took place on Tuesday, March 27, where the constitutionality of the individual mandate, requiring every American to buy health insurance or pay a penalty, was argued, with the Federal Government arguing that its power to regulate interstate commerce includes the right to mandate that everybody buys health insurance, and if not, then the penalty should be viewed as a tax. The State Governments argued as expected that this gives the Feds unlimited power and a penalty is not a tax. The lively debate came complete with broccoli, burial insurance and babies being denied care at the hospital, hypotheticals. But here is what I found interesting: at the heart of the Federal Government argument was the contention that the uninsured are basically offloading their health care costs on the insured and society in general, therefore we must mandate that they buy insurance and pay their fair share. The States on the other hand, argued that forcing healthy people who don’t want to buy insurance to subsidize the sick is really not fair. Most Americans, as everybody agreed, are already purchasing health insurance, so who are these freeloading uninsured?

Well, it seems that 68% of the uninsured are under 140% of the Federal Poverty Level (FPL), and 95% of them are below 400% FPL. A full 45% of poor adults and 17% of poor children (under 100% FPL) are uninsured. Are these our freeloaders? Are these our interstate frequent travelers who impose huge uncompensated expenses on States where they don’t live? Are these poor people without insurance seeking out States that enacted guaranteed-issue and community rating insurance laws and move there en-masse? Is anybody else doing that? Do we even know what problem we are trying to solve?

Another pearl from the March 27 arguments was the realization that the States concede that the Federal Government has the power to require that people pay for health care with insurance. They only differ on the timing of buying the necessary insurance instrument, with the State Governments insisting that a free citizenry should have the right to purchase insurance en route to the ER, if they so choose, and the Feds arguing that they must buy insurance the day they are born. Does that mean that one cannot pay for health care with cash, or chickens? Will they check to see if you have insurance and if so, cash payments will be disallowed? What do you do if you’re one of the penalized? Do you get to pay cash, or do you get some services in return for all those penalties you paid into the system?

As interesting as the constitutionality arguments were, I found the session on severability to be most enlightening. On Wednesday, March 28, the Court grappled with the next steps, if the individual mandate is by any chance found to be an unprecedented and unlimited expansion of Congress powers and thus ruled unconstitutional. The 26 Republican governed States argued that the Court should throw out the entire Obamacare legislation with the mandate, because everything else in the PPACA is either hinging on the offending mandate or is unimportant. This is not surprising, since the war on the individual mandate, which is the brainchild of an ultraconservative foundation, is just a battle in a much larger war to remove the current Democratic President from office. The Federal Government began its arguments by mentioning the millions of citizens that are not standing before the Court and how the Court should nevertheless give them consideration. That was beautiful, but it didn’t last long, because eventually it became clear that the Federal Government is asking the Court to strike down both guaranteed-issue and community rating clauses along with the individual mandate, if found unconstitutional.

The Federal Government, true to form, was arguing on behalf of its insurance companies patrons. Unless the Feds can guarantee a certain number of customers, there is no way that insurers will agree to sell their wares in a non-discriminatory manner, because discrimination is how insurers make money, and no government should infringe upon basic rights of corporations. It fell to an attorney independently appointed by the Supreme Court to argue for the people, and (very eloquently) make the simple point that the purpose of the PPACA was not to provide customers to insurers, but to make health care affordable to all Americans, including poor and sick ones. The individual mandate is just one tool in an arsenal of tools to accomplish that end. It may be a very useful tool, but it’s not the only tool, and therefore if it is found unacceptable, it should be severed from the legislation and removed without throwing out the baby with the bathwater.

So the People finally got their 15 minutes in Court, represented by Court appointed counsel, as paupers usually are. Whatever the Court decides in this case, I will forever be grateful to the Supreme Court of the United States, the nine unelected Justices, who saw fit to solicit someone to speak for the People, something that neither States nor Federal Governments seemed to be too terribly inclined to do. And I am grateful that the Court chose H. Bartow Farr, III, Esq. to represent us in this matter, since his oral arguments were second to none, and may God grant the Court the wisdom to do what Mr. Farr advocated that they do, and the People shall prevail.

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